Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

March 11, 2024

Summaries of diversion agreements and private admonitions are published on a quarterly basis. They are supplied by the Colorado Supreme Court Office of Attorney Regulation Counsel.

Diversion and Private Admonition Summaries

Diversion is an alternative to discipline. See CRCP 242.17. Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel (Regulation Counsel), the Legal Regulation Committee (LRC), the Presiding Disciplinary Judge (PDJ), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline. For example, Regulation Counsel can offer a diversion agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel (OARC). Thereafter, LRC or the PDJ must approve the agreement.

From November 1, 2023, through January 31, 2024, at the intake stage, Regulation Counsel entered into 8 diversion agreements involving 8 separate requests for investigation. LRC approved 7 diversion agreements involving 13 separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval. LRC issued no private admonitions during this time frame. The PDJ approved no private admonitions during this time frame.

Determining Whether Diversion Is Appropriate

Regulation Counsel reviews the following factors to determine if diversion is appropriate: (1) there is little likelihood that the attorney will harm the public during the period of participation; (2) Regulation Counsel can adequately supervise the conditions of diversion; and (3) the attorney is likely to benefit by participation in the program.

Generally, Regulation Counsel will consider diversion only if the presumptive range of discipline in the particular matter is likely to result in a public censure or less. However, if the attorney has been publicly disciplined in the last three years, the matter will not be diverted under the rule. CRCP 242.17(b)(6). Other factors Regulation Counsel considers may preclude Regulation Counsel from agreeing to diversion. See CRCP 242.17(b).

Purpose of the Diversion Agreement

The purpose of a diversion agreement is to educate and rehabilitate the attorney so that the attorney does not engage in such misconduct in the future. Furthermore, the diversion agreement may also address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was poor office management, then one of the conditions of diversion may be a law office management audit and/or practice monitor. The time period for a diversion agreement is generally no less than one year nor greater than three years.

Conditions of the Diversion Agreement

The type of misconduct dictates the conditions of the diversion agreement. Although each diversion agreement is factually unique and different from other agreements, many times the requirements are similar. Generally, the attorney is required to attend ethics school and/or trust account school conducted by OARC attorneys. An attorney may also be required to fulfill any of the following conditions:

law office audit
practice monitor
practice mentor
financial audit
Colorado Lawyer Self-Assessment Tool (online self-assessment)
restitution
payment of costs
mental health evaluation and treatment
substance abuse testing
attendance at continuing legal education (CLE) courses
any other conditions that would be determined appropriate for the type of misconduct.

After the attorney successfully completes the requirements of the diversion agreement, Regulation Counsel will close its file, and the matter will be expunged pursuant to CRCP 242.43(d). If Regulation Counsel has reason to believe that the attorney has breached the diversion agreement, then Regulation Counsel must follow the steps provided in CRCP 242.17 before an agreement can be revoked.

Types of Misconduct

The types of misconduct resulting in diversion from November 1, 2023, through January 31, 2024, generally involved the following:

lack of competence, implicating Colo. RPC 1.1;
neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4;
fees issues, implicating Colo. RPC 1.5;
confidentiality of information, implicating Colo. RPC 1.6;
conflict of interest, implicating Colo. RPC 1.7;
trust account issues, implicating Colo. RPC 1.15A through 1.15E;
a lawyer’s responsibility for another lawyer’s violation of the Colorado Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, implicating Colo. RPC 5.1;
assisting another in the unauthorized practice of law/multijurisdictional practice of law, implicating Colo. RPC 5.5;
committing a criminal act, implicating Colo. RPC 8.4(b); and
conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4(d).

Some cases resulted from personal problems the attorney was experiencing at the time of the misconduct. In those situations, the diversion agreements may include a requirement for a mental health evaluation and, if necessary, testing and counseling to address underlying problems of depression, alcoholism, or other mental health issues that may be affecting the attorney’s ability to practice law.

Diversion Summaries

Below are summaries of some of the Diversion Agreements that Regulation Counsel determined appropriate for specific types of misconduct from November 1, 2023, through January 31, 2024. The sample gives a general description of the misconduct, the Colorado Rules of Professional Conduct implicated, and the corresponding conditions of the diversion agreement.

Lack of Competence

>> Respondent represented the client in a post-decree matter. During the representation, the following occurred: Respondent filed a motion seeking, in part, to revoke the other parent’s tie-breaking authority for major decisions involving the children under CRS § 14-10-129.5 rather than § 14-10-131. The court later dismissed that part of the motion, finding that such relief must be requested via a motion filed under CRS § 14-10-131. Respondent’s paralegal sent confidential client information via email to another firm client with the same first name. Although the email could not be recalled, respondent immediately called the second client, who had not seen the email, and asked the client to delete it, which the client agreed to do. Respondent filed a status report with the court in which respondent asked the court to enforce the existing parenting time orders, modify the parties’ permanent orders to split parenting time equally, and revoke the other parent’s tie-breaking authority. The court found that the status report was not a proper pleading under which to seek an order from the court. Respondent’s paralegal missed the deadline to file the client’s exhibit list. Opposing counsel then filed a motion in limine to preclude any witnesses at hearing other than respondent’s client, which was granted. Respondent filed an emergency motion to prohibit contact of witnesses. Although respondent intended to ask to limit communication with respondent’s client’s witnesses to opposing counsel, the motion did not specifically say that. The court denied respondent’s motion, stating that it did not qualify for treatment as a forthwith or emergency motion, finding that there was “no legal basis” for it and that it was “void of any citation” to legal authority. Respondent later filed a motion for modification of custody and decision-making pursuant to CRS § 14-10-131. The motion was denied on the basis that it failed to allege the proper standard for a modification as set forth in that statute.

Rules Implicated: Colo. RPC 1.1, 1.3, 1.6(a), and 5.3.

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of the Family Law Basics CLE course, completion of the online self-assessment, and payment of costs.

Neglect of a Matter and/or Failure to Communicate

>> Respondent failed to diligently prepare expert disclosures and timely comply with court orders regarding expert disclosures, which caused harm to the overall case.

Rules Implicated: Colo. RPC 1.3.

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.

>> In April 2017, the client hired respondent to help resolve a complicated dispute with a neighbor. Pursuant to the engagement for legal services prepared by respondent, respondent stated that the client would “generally receive statements on a monthly basis.” In May 2017, the client had not received a monthly invoice and requested one from respondent. The client made repeated requests during the subsequent years, and also made periodic payments totaling more than $38,000 between April 2017 and January 2023. Respondent sent the first invoice in February 2023 seeking more than $90,000 in additional charges. A dispute between respondent and the client arose, and the client terminated respondent’s services in April 2023.

Rules Implicated: Colo. RPC 1.4.

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, participation in fee arbitration, completion of the online self-assessment, and payment of costs.

Fees Issues

>> Respondent had a small ownership interest in a company that could serve as a trustee for clients. Respondent referred this company to clients. With one client in particular, respondent did not disclose this ownership interest. Respondent did not enter into a flat-fee agreement with the client that satisfies the requirements of Colo. RPC 1.5(h).

Rules Implicated: Colo. RPC 1.5(h) and 1.7(a)(2).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.

>> A prospective client’s mother called respondent regarding an incident that occurred at her home involving her son. Local media had been contacting her and attempted to interview the son. The following day, the prospective client and members of the prospective client’s family met with respondent for a consultation. The prospective client wanted to retain respondent to be the client’s liaison for speaking with the media and, if necessary, to be the client’s defense attorney. The following day, respondent texted the prospective client, stating, in pertinent part, “If you could get me over $1,000 payment [sic] to cement our Attorney client relationship I think it’s a good idea.” The prospective client then sent $1,000 to respondent’s personal bank account via Zelle. Respondent contends that the funds were deposited into respondent’s personal bank account because respondent had already earned them. However, respondent never provided the client with a written statement of the basis or rate of respondent’s fee as required by Colo. RPC 1.5(b). Respondent and the client had no further communication for nearly a year, until the client texted respondent stating that the client ended up not needing to secure legal counsel and requesting that respondent refund the client’s retainer. According to respondent, the client’s file had been closed as inactive and transferred off-site for storage. Shortly after retrieving it, respondent suffered catastrophic injuries in an accident that prevented respondent from responding in a timely manner to the client’s request for a refund. In connection with this investigation, respondent provided an accounting showing that respondent earned $1,225 at an hourly rate of $350 in the client’s matter for services performed prior to receipt of the client’s retainer payment. The client contends that respondent did not discuss respondent’s fee with the client, did not advise the client that respondent would charge the client for time spent during the consultation, and did not advise the client’s mother that respondent would charge for the mother’s initial telephone call to respondent’s office.

Rules Implicated: Colo. RPC 1.5(h) and 1.7(a)(2).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.

Conflict of Interest

>> Respondent, who practices family law, had a personal friendship with a married couple. Wife had one child from a previous relationship, and husband helped raise the child but was not the child’s legal father. Husband called respondent and told respondent that he and wife had decided to divorce. Wife then texted respondent and asked if they could have a follow-up conversation to respondent’s discussion with husband. Despite respondent’s position that no attorney-client relationship arose between respondent and either husband or wife, respondent later told wife that what respondent discussed with husband was technically covered by privilege. Both husband and wife consented to a phone call between all three of them. At that point, respondent believed that husband and wife’s positions were aligned and that the divorce was amicable. Shortly thereafter, respondent participated in an approximately 23½-minute-long Zoom meeting with husband and wife. Although respondent asserts that respondent advised the couple at the outset that respondent would not consent to represent either of them and that, if the divorce stopped being amicable, it would be a good idea for them to seek individual legal counsel, the videorecording that wife made of the Zoom meeting does not contain any such statements, and she denies that respondent told her she should seek her own legal counsel. Nevertheless, respondent gave both parties legal advice about such topics as jurisdiction, the need for a parenting plan, amending the divorce petition (which had already been filed), and child custody as it pertained to the child’s biological father. A month after the Zoom meeting, wife filed a motion for parenting plan with the court based on the information respondent provided to her. According to wife, she did not understand that filing such a document would grant husband legal rights and/or custody of her child. Wife soon reconsidered her decision, and two days later, she filed a motion to revoke the previous motion. Both husband and wife retained individual counsel shortly thereafter.

Rules Implicated: Colo. RPC 1.7(a)(1).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, three hours of CLE in identifying conflicts of interest, and payment of costs.

Responsibility for Another Lawyer’s Rules Violation

>> Respondent managed a law firm that took on a number of cases in which the firm was hired on a client’s behalf by a third party. The third party was managed, in part, by an attorney, though it was not a law firm. Respondent failed to take reasonable efforts to ensure the third party did not interfere with the attorney-client relationship between the firm and its clients.

Rules Implicated: Colo. RPC 5.1(a).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school and payment of costs.

Assisting Another in the Unauthorized Practice of Law/ Multijurisdictional Practice of Law

>> Respondent is not a licensed Colorado lawyer but runs a company that provides law-related services. Respondent held this company out to the public as able to provide “legal” services and reorganized the company as a PLLC. Respondent has now removed the description of the company as able to provide “legal” services and has reorganized the company so that it is not a PLLC.

Rules Implicated: Colo. RPC 5.5(a)(3) and 8.4(a).

Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school (or a similar course in the state in which respondent previously practiced law) and payment of costs.

Criminal Act

>> Respondent was in another state when respondent was involved in a property damage crash with no injuries. A request for a search warrant to obtain a sample of respondent’s blood was granted, and respondent had a blood alcohol level greater than the reporting threshold. Respondent was convicted of operating a vehicle while intoxicated in a manner that endangers a person, a class A misdemeanor in that state. Respondent completed an independent medical examination and was diagnosed with “alcohol use, severe, in early remission, in controlled environment.” This was respondent’s fourth alcohol-related conviction.